Child Testimony via Two-Way Closed Circuit Television: A New Perspective on Maryland v. Craig in United States v. Turning Bear and United States v. Bordeaux
Aaron R. Harmon
UNC School of Law
December 1, 2005
North Carolina Journal of Law and Technology, Vol. 7, p. 157, Fall 2005
For Confrontation Clause purposes, child testimony by two-way closed circuit television is substantively different from one-way closed circuit television. Two-way closed circuit testimony is preferable because it more closely approximates face-to-face confrontation. The Supreme Court’s case-specific holding in Maryland v. Craig was directed at one-way closed circuit testimony. As such, the Eighth Circuit was mistaken in conflating the two forms of testimony when it relied on Craig to overturn both United States v. Turning Bear and United States v. Bordeaux, and was similarly mistaken in holding that § 3509 of the Child Victims’ and Witnesses’ Rights statute was unconstitutional to the extent it conflicted with Craig.
Since the three-part criteria put forth in Craig was specific to one-way testimony, it should not have controlled the decision in either Bordeaux or Turning Bear. This article makes two arguments. First, the broader holding of Craig (that the “denial of such confrontation [be] necessary to further an important policy” is more appropriate for the evaluation of two-way testimony due to both the potential traumatic effects on child witnesses and the State’s clear interest in protecting them. Second, because two-way testimony in fact preserves the defendant’s right to confrontation, section 3509 of the 1990 Child Victims’ and Child Witnesses’ Rights statute (allowing the child to testify via two-way closed circuit television based on fear, likelihood of emotional trauma, or mental or other infirmity) is not only constitutional, but presents a preferable method for child testimony in appropriate cases.
Note: Submission is older than one year and will not distribute in SSRN eJournals, but will be made available for public viewing.
Number of Pages in PDF File: 24
Keywords: Confrontation clause, child testimony, Maryland v. Craig, Turning Bear, Bordeaux, § 3509, Child Victims’ and Witnesses’ RightsAccepted Paper Series
Date posted: July 18, 2011
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